Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 18, 1979
Summary: Respondent let unauthorized person run licensed premises while he was sick. Recommend fine and reprimand for Respondent.
79-1643.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1643
)
WILLIE NORMAN, JR., d/b/a )
PARADISE CAFE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 21 August 1979 at Ocala, Florida.
APPEARANCES
For Petitioner: David Hudson, Esquire
Deputy General Counsel
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Willie Norman, Jr.
1019 NorthWest 6th Place Gainesville, Florida
By Notice to Show Cause filed with the Division of Administrative Hearings July 31, 1979, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the 2-COP beverage license of Willie Norman, Jr. d/b/a Paradise Cafe, Respondent. As grounds there for it is alleged that on three occasions in August 1977 Respondent employed Isaiah (Ike) Norman on the premises knowing Ike did not meet the qualifications for such employment; that on or about 14 August 1977 Respondent's employees, Ike and Manuel Norman, sold an alcoholic beverage during hours in which such sale is prohibited by Gainesville City Ordinance; and that on or about 7 October 1977 Respondent maintained a place where controlled substance, to wit: cannabis, was stored or kept.
Six witnesses were called by Petitioner, nine exhibits were admitted into evidence and Respondent testified on his own behalf.
FINDINGS OF FACT
Willie Norman, Jr. d/b/a Paradise Cafe holds 2-COP beverage license and was so licensed at all times here relevant.
In August, 1977 Willie Norman was in the hospital where he had a gall bladder operation. During this time on August 7 and 14, Gainesville police officers observed the Paradise Cafe open after hours on consecutive Sunday nights.
Gainesville City Ordinance No. 2082 (Exhibit 9) prohibits the sale of alcoholic beverages on Sundays after 11 p.m. in the city of Gainesville.
On 7 August 1977 the police found the establishment open at approximately 3 a.m. with 30 to 40 patrons in the premises and Ike Norman apparently in charge. The following Sunday night on August 14 the police raided the premises at 11:30 p.m. on Sunday night and found 40 to 50 patrons in the establishment with Ike behind the bar and Manuel Norman serving beer.
When Manuel Norman was arrested, Ike stated that he (Ike) was running the business because the licensee was sick and that if anyone was to be arrested it should be him.
After receiving the police reports, the premises were inspected by beverage agents on 30 August 1977 and Ike Norman told the agent that he was running the business for his son, the licensee, who was home sick.
On 7 October 1978 two beverage agents entered the Paradise Cafe on a routine inspection, and, while looking in the men's room, one of the agents observed a brown paper bag, the contents of which he found suspicious. A subsequent analysis of the contents disclosed that the bag contained 14 grams of cannabis. No evidence was presented that licensee or any employee of licensee knew or should have known that the cannabis was on the premises.
Willie Norman, Jr., Ike Norman and Manuel Lee Norman are brothers. Ike was the licensee of the cafe several years ago when it was named the Red Top Cafe. In 1973, Ike was convicted of possession of alcoholic beverages for sale without a license. He sold the business to his brother, Willie, who took over the lease and first became licensed in 1975-76.
According to Willie's testimony, while he was in the hospital during the month of August, 1977, he left Manuel Norman in charge. He was aware that Ike could not legally be employed at the business because of Ike's criminal record. Willie expressed no knowledge of any of the other charges preferred against his license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 562.13, Florida Statutes, provides in pertinent part: (3)(a) It is unlawful for any vendor licensed
under the beverage law to employ as a manager or person in charge or as a bartender any per son:
Who has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States, or any other state.
During the absence of Respondent from the licensed premises in the month of August 1977, Ike Norman was observed on the premises on at least three occasions. On one of these occasions he was the only one on the premises identified with the licensee. Ike Norman's reported statements to the various witnesses to the effect that he was in charge of and was running the business during the licensee's absence due to illness was hearsay and not admissible, standing alone, to prove the truth of this matter. However, pursuant to Section 120.58(1)(a) hearsay evidence may be used for the purpose of supplementing or explaining other evidence.
These witnesses saw Ike Norman at the premises and apparently in charge. His statement that he was in charge supplements that evidence and, combined, this evidence is sufficient to rebut the testimony of Respondent that Manuel Norman was in charge and Ike was not authorized to be there.
The evidence was unrebutted that Manuel Norman was observed serving alcoholic beverages to a customer after 11 p.m. on Sunday, August 14, 1977. At the time of this sale Manuel Norman was, according to the testimony of licensee, an employee of the licensee.
Section 562.14, Florida Statutes, provides in part:
(1) Except as otherwise provided by county
or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the Division between the hours of midnight and 7 a.m. of the following day.
Gainesville City Ordinance No. 2082, as noted in the Findings of Fact above, bans the sale of alcoholic beverages after 11 p.m. on Sunday and this ordinance was in effect on 14 August 1977, the date of the alleged offense.
With respect to the charge involving the cannabis found in the men's room on the licensed premises, the Petitioner charges this to be a violation of Section 561.29, Florida Statutes, which provides in part that the Division may revoke or suspend a license when it is found upon sufficient cause appearing of:
(1)(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while
in the scope of employment, of any of the laws of this state ...
Possession of cannabis of the amount found in the men's room of the licensed premises is an offense against the laws of Florida. However, no evidence was submitted that licensee or any of his employees, agents, servants, etc. was ever in possession of the cannabis or even aware of its existence. As stated by the court in G & B of Jacksonville v. Florida Department of Business Regulation, Division of Beverage, 366 So.2d 877 (1st DCA 1979):
Before a beverage license may be suspended or revoked it must be found by competent sub stantial evidence that the licensee was
culpably responsible for the alleged violation
as a result of its own negligence, intentional wrongdoing or lack of diligence.
The men's room of a public facility, like the licensed premises here involved, is generally considered open to the public and certainly open to all male patrons of the establishment. Any one of these patrons could have left the paper bag in the men's room without the knowledge of the licensee or any of his employees. Absent any evidence of some knowledge or possession of the cannabis by Respondent, there is no basis for this charge.
From the foregoing it is concluded that Willie Norman, Jr. d/b/a Paradise Cafe allowed his brother, Isaiah Norman, to manage the licensed premises during the month of August, 1977, at a time Isaiah Norman was not qualified, by reason of his prior criminal record, to be so engaged; that an employee of licensee served alcoholic beverages after authorized operating hours to a customer; and that the licensee is not guilty of possession of cannabis on the licensed premises or maintaining premises where such material is stored or kept. It is therefore
RECOMMENDED that Willie Norman, Jr. d/b/a Paradise Cafe be fined $100 and warned against any future violation of the beverage laws.
DONE and ENTERED this 30th day of August, 1979, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1979.
COPIES FURNISHED:
David Hudson, Esquire Deputy General Counsel
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32301
Mr. Willie Norman, Jr. 1019 NorthWest 6th Place Gainesville, Florida 32601
Docket for Case No: 79-001643
Orders for Case No: 79-001643
| Issue Date |
Document |
Summary |
|
Sep. 17, 1979 |
Agency Final Order
|
|
|
Aug. 30, 1979 |
Recommended Order
|
Respondent let unauthorized person run licensed premises while he was sick. Recommend fine and reprimand for Respondent.
|
